Pending
the determination of the review, the applicant engaged a legal practitioner and
has thus approached this court for bail in terms of section 123(1)(b)(i) of the
Criminal Procedure and Evidence Act [Chapter 9:07].
The
applicant has outlined a number of reasons as to why he believes that the judge
will, on review, set aside the sentence imposed upon him by the court a quo. The applicant further cited a number of authorities
which support his contention. He averred that it is highly likely that the
sentence imposed upon the applicant will be interfered with.
The
application is opposed by the State.
Counsel
for the respondent submitted that there are deficiencies in the application,
and, in his view, the application lacks merit and should therefore be
dismissed. I will quote the submissions by the State which I found to be
persuasive as follows:-
“…,.
The reasons for bringing proceedings under review or appeal is usually the
same, to have the judgment set aside. Where the reason for wanting this is
that the court came to a wrong conclusion on the facts or the law, the
appropriate procedure is by way of appeal. Where the real grievance is
against the method of the trial it is proper to bring the case on review. That
distinction depends therefore on whether it is the result or the method of
trial which is to be attacked. The method of trial will be attacked on
review only when the result of the trial is regarded as unsatisfactory as
well. The essential questions in review proceedings is not the correctness
of the decision under review but its validity. In this regard, one has to
see HERBSTEIN and VAN WINSEN, Civil Practice of the Supreme Court of South
Africa 4thed p932, Wahlhaus v
Additional Magistrate, Johannesburg & Another
1959 (3) SA 113 (A).
5.
In the instant applicant has not shown to this Honourable Court any grounds of
review he intends to rely on. Indeed, this Honourable Court has inherent
power of review created under Part IV of the High Court of Zimbabwe Act, 1981
but that power is enumerated under section 27(1) of the Act which provides that
subject to the provisions of that Act and any law, the grounds of review are
absence of jurisdiction, bias and gross irregularity in the proceedings or
decisions.
It
is submitted that there was no bias, lack of jurisdiction or gross irregularity. If
ever there is anything to go by it has to be an appeal against the perceived
excessiveness or harshness of the sentence. If the appellant is however
going to take that route, he has to purge his late noting of appeal and then
file his Notice of Appeal which apparently has not been filed.
6.
It cannot be assumed that the Honourable Court, on review, is going to attend
to issues raised in this application. Applicant has a duty to initiate and
place before the court which grounds is his application for review based
on. Paragraph 5 of the application talks of his legal practitioner going
to write to the judge whom the proceedings have been brought for review. With
all due respect, that is not the procedure. He has to write those reasons
to the Honourable Court just before seeking admission of applicant to
bail. There is no reference of the review number and neither is there a
copy of the application to the Honourable Court.”
Indeed,
the applicant erroneously stated in his application for bail pending review, in
paragraph 5 of his application, that “the applicant's legal practitioners will
proceed to make written submissions to the Honourable Judge to whom the matter
has been allocated for review.”
The
applicant's legal practitioner conceded that to date he has not done so.
It
became apparent that Justice HUNGWE is the one dealing with the review when the
applicant's legal practitioner produced a copy of a letter in his answering
affidavit wherein he was asking the Judge if he wanted the lawyer to file
written submissions. This letter, dated 3 April, has not been answered to date
and no submissions have been filed before Justice HUNGWE. Counsel for the
applicant argued, further, that he was not under any obligation to file any
submissions. What this therefore means is that Justice HUNGWE is going to
exercise his wide powers of review. But in doing so, he will not take into
account the submissions and authorities cited in this bail application since
the same have not been placed before him.
I
therefore agree with the State counsel that there are deficiencies in this
application. It has not been shown that the applicant has prospects of success
on review and that his release on bail would not jeopardise the administration
of justice, moreso when this application is brought after the proceedings have
been terminated and the presumption of innocence is no longer applicable. I am
therefore not persuaded by the applicant. The applicant must wait for the
outcome of the automatic review while serving his sentence.
It
is for the above reasons that the application for bail pending review is
dismissed.
